here - Fuerst Ittleman David & Joseph, PL

Case: 11-1612 Document: 003110561288 Page: 25 Date Filed: 06/13/2011
predicated upon an unconstitutional construction of the applicability of the statute
of limitations provision of the Internal Revenue Code.
The District Court also erred in finding that Appellant had failed to show
institutional bad faith on the part of the IRS in respect to the IRS‘ never-ending
audits, including that of the Appellant. Consequently the District Court erred in
enforcing the IRS third-party summonses. Moreover, the District Court erred in
concluding that Appellant‘s arguments below regarding the constitutionality, or
lack thereof, were premature and could not be brought at the first instance for
redress before the District Court. The District Court‘s misinterpretation of Powell
was legal error, subject to de novo review.
ARGUMENT
POINT I
THE DISTRICT COURT ERRED IN
CONCLUDING THAT THE ENFORCEMENT OF
THE IRS SUMMONSES WOULD NOT RESULT IN
AN ABUSE OF ITS PROCESS.
The District Court in its memorandum opinion cited to the correct law in this
Circuit, but when it applied the facts to the applicable law reached the wrong
conclusion. As the District Court aptly noted:
The Third Circuit has recognized that, under the Powell test, ―[t]he
taxpayer retains the right to challenge the summons on any
appropriate ground. The teaching of . . . decisions [since Powell] is
FUERST ITTLEMAN, PL
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